Darity v. U.S.

• Decision Date: 25 October 2000
• Docket Number: No. Civ. 1:00CV168.,No. 1:95CR132-1.,Civ. 1:00CV168.,1:95CR132-1.
• Court: U.S. District Court — Western District of North Carolina
• Parties: Michael Leroy DARITY, Petitioner, v. UNITED STATES of America, Respondent.

Page 355

124 F.Supp.2d 355

Michael Leroy DARITY, Petitioner, v. UNITED STATES of America, Respondent.

No. Civ. 1:00CV168.

No. 1:95CR132-1.

United States District Court, W.D. North Carolina, Asheville Division.

October 25, 2000.

Order Denying Reconsideration December 4, 2000.

Ronald J. Freeman, Johnson, Freeman & Perkins-Hooker, LLC, Atlanta, GA, for Michael Leroy Darity, petitioner.

Jerry W. Miller, U.S. Attorney's Office, Asheville, NC, for United States of America, respondent.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on the Petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The Government has responded and moved to dismiss the petition. For the reasons stated herein, the undersigned vacates in part the Petitioner's sentence.

I. PROCEDURAL HISTORY

Petitioner was indicted on December 5, 1995, and charged with conspiracy to manufacture and distribute cocaine base. Bill of Indictment, filed December 5, 1995. The Government filed a Bill of Information alleging that the conspiracy involved more than 50 kilograms of cocaine base. Information pursuant to 21 U.S.C. § 841(b) filed December 7, 1995. On July 9, 1997, Petitioner was convicted by jury verdict. Verdict Sheet, filed July 9, 1997. Numerous post-trial motions were filed, considered and denied. On January 29, 1998, the undersigned sentenced the Petitioner to serve 384 months incarceration. Judgment in a Criminal Case, filed February 5, 1998.

Petitioner's conviction and sentence were affirmed by the Fourth Circuit on June 17, 1999. United States v. Darity, 181 F.3d 92 (Table), 1999 WL 397722 (4th Cir.1999). On appeal, Petitioner claimed the undersigned made the following errors: (1) the denial of a new trial based on juror misconduct; (2) the denial of a motion to suppress evidence of a 1997 arrest; (3) the admission of that evidence pursuant to Federal Rule of Evidence 404(b); (4) the denial of a motion for a change of venue based on the racial makeup of the general population of the division in which he was tried; (5) the admission of testimony by cooperating witnesses in violation of the anti-gratuity statute; and (6) sentencing errors in the calculation of drug quantities. All grounds were rejected by the Fourth Circuit. Id. A petition for a rehearing en banc was denied on July 27, 1999. On January 18, 2000, the Supreme Court declined the petition for a writ of certiorari. Petitioner's motion pursuant to 28 U.S.C. § 2255 was filed on August 2, 2000, and thus is timely.

II. STANDARD OF REVIEW

A prisoner in federal custody may attack his conviction and sentence on the ground that it is in violation of the Constitution or United States law, was imposed without jurisdiction, exceeds the maximum penalty, or is otherwise subject to collateral attack. 28 U.S.C. § 2255. Petitioner argues that his conviction and sentence are unconstitutional due to the recent decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court there held that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Based on Apprendi, Petitioner also argues that the United States Sentencing Guidelines are unconstitutional. The remaining two grounds in support of the motion are that Petitioner received ineffective assistance of counsel and the undersigned erred by enhancing Petitioner's sentence due to his leadership role in the offense.

III. DISCUSSION

The Court first addresses the impact of Apprendi on Petitioner's conviction and sentence. The bill of indictment charged the Petitioner with conspiring to manufacture and distribute cocaine base. The quantity of the drug involved in the conspiracy was not specified in the indictment; but, the bill of information alleged that in excess of 50 kilograms of base were involved. Based on the evidence at trial, the Probation Officer found that 602.3 grams of cocaine base and 93.7 kilograms of cocaine powder should be attributed to the Petitioner. Presentence Report, prepared October 14, 1997. Because of the amount of cocaine base attributed to the Petitioner, he faced a mandatory minimum sentence of not less than 10 years or more than life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii). As previously noted, the undersigned sentenced Petitioner to serve 384 months incarceration. This sentence was based on a finding by the Court from the preponderance of the evidence presented during the trial that the Petitioner knew or could reasonably foresee the drug quantities involved in the conspiracy as indicated by the probation officer.

However, under the reasoning of Apprendi, the sentencing court may no longer make a finding of drug quantities by a preponderance of the evidence if the result would be a sentence greater than the statutory maximum set out in § 841(b)(1)(C). Thus, Petitioner's sentence should not have exceeded 240 months because no drug quantity was specified in the bill of indictment. 21 U.S.C. § 841(b)(1)(C); United States v. Angle, 230 F.3d 113, 123 (4th Cir.2000) ("Pursuant to Apprendi, in order for imprisonment penalties under § 841(b)(1)(A) or (B) to apply to the defendants, such that findings of particular drug quantities could expose them to imprisonment terms greater than § 841(b)(1)(C)'s catch-all statutory maximum of twenty years, the drug quantity must be treated as an element: charged in the indictment, submitted to a jury, and proven to beyond a reasonable doubt."); United States v. Doggett, 230 F.3d 160, 164 (5th Cir.2000). Thus, if Apprendi is retroactive, Petitioner's sentence was increased by a fact, the drug quantity, beyond the prescribed statutory maximum without that fact having been submitted to the jury and proved beyond a reasonable doubt. The only issue then is whether Apprendi should be applied retroactively.¹ Because that issue is a matter of law, no evidentiary hearing is necessary.

First, there is no question that the holding in Apprendi is of constitutional import: the Supreme Court so stated.

In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."

Apprendi, 530 U.S. at ___ - ___, 120 S.Ct. at 2362-63 (quoting Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)) (emphasis added). Likewise, the Fourth Circuit has recently recognized that in Apprendi, the "Court announced as a constitutional rule [] a principle that had been suggested as one in Jones ...." Angle, at 120. New rules of constitutional law, whether procedural or substantive, apply retroactively to cases on direct review. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). "In Teague [the Supreme Court] held that, in general, `new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'" Lambrix v. Singletary, 520 U.S. 518, 526, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (quoting Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). However, new rules of substantive criminal law are applied retroactively to cases on collateral review. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Petitioner and the Government agree that Apprendi announced a procedural rule but disagree as to its retroactivity under the exceptions provided by Teague.

In Teague [the Supreme Court] held that, in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." To apply Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. Second, it must survey the legal land-scape as it then existed, and determine whether a[] court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution. Finally, if the court determines that the [] petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity.

Lambrix, 520 U.S. at 527, 117 S.Ct. 1517 (quoting Teague, supra) (other citations omitted). The first two steps of the Teague process are met in this case. Angle, supra; United States v. Martinez, 139 F.3d 412, 415 (4th Cir.1998), cert. denied, 525 U.S. 1073, 119 S.Ct. 807, 142 L.Ed.2d 667 (1999) ("A rule announced in a case decided subsequent to the date on which the [§ 2255] petitioner's conviction became final is considered a new rule `if the result was not dictated by precedent existing at the time the defendant's conviction became final.'"). The only issue is whether one of the two Teague exceptions apply. The first exception is inapplicable because it deals with a rule which places a class of conduct beyond the power of the Government to prescribe. Lambrix, at 539, 117 S.Ct. 1517. The second exception is for "`watershed rules of criminal procedure' that significantly improve the accuracy...